On 23 May 2014, the National Assembly adopted a set of judicial laws, which were introduced into the Parliament through an emergency procedure, without public discussion and consultations with expert public. Many non-governmental organizations expressed their concern by sending the open letter on the occasion of amendments to the legislative laws, demanding that they shall be withdrawn from the Parliament, pointing that some of the proposed measures may lead to legal uncertainty and inequality before the law, which will threaten the fundamental right to legal protection and will deepen the already great distrust into the legal system, legal state and rule of law in Serbia. However, the reaction of the civil sector did not affect the process of adoption of the law.
Soon after, the first initiative for the assessment of constitutionality of the Article 85, Paragraph 2 of the Law on Civil Procedure was submitted to the Constitutional Court by Praxis for the denial of the right to a fair trial to some population groups by prescribing illegitimate and disproportionate limitations and for threatening the constitutional principle of equality of legal protection before the courts and other state bodies.
Specifically, the Article 4 of the Law on Amendments to the Law on Civil Procedure, which came into force on 31 May 2014, amended the Article 85 with the new paragraph 2 based on which “the representative of an individual must be an attorney-at-law, a close relative, brother, sister or a spouse, or the representative of the legal aid service in the local self-governance who is a graduate lawyer with the bar exam”.
This imposes limitations to a number of population groups, such as legally invisible persons, who are most often members of the vulnerable population groups, who do not have legal education to the extent needed to represent their own interests before the court, nor can they hire a proxy based on the Article 85, Paragraph 2 of the Law on Civil Procedure, which is also applied in a non-contentious procedure. Given that they do not have money to hire a bar-admitted lawyer, there is no possibility for them to hire the representative of free legal aid service of the local self-governance as there is yet no efficient free legal aid system. In addition to the legally invisible, the persons without alive close relatives from the Article 85, Paragraph 2 of the Law on Civil Procedure, who are not married and of poor financial standing are also deprived of the access to court. This also refers to the persons who live in common-law communities and have no alive close relative from the Article 85, Paragraph 2 of the Law on Civil Procedure and are of poor financial standing. Based on the Article 62, Paragraph 5 of the Constitution, a common-law community is equal with marriage in accordance with the law. It is not clear why spouses may represent each other in the civil procedure and common-law partners may not.
To remind, the Article 85 of the Law of Civil Procedure has already been the subject of the assessment of constitutionality when it was established that its provisions in the paragraph 1 reading “must be a lawyer” and in the paragraph 2 reading that “a party must be represented by an attorney-at-law in the procedure upon extraordinary remedies unless he/she is a lawyer himself/herself” were unconstitutional. By the decision as of 23 May 2013, the Constitutional Court established that representation by the bar-admitted lawyer, i.e. a person whose profession is provision of free legal aid, and not by anybody else, is naturally a financial burden imposed on the represented party, and it gives the state an active role in providing an available legal procedure for determining the right and obligations stipulated by regulations. Concretely, the exercise of the right to free legal aid is questioned for a wide range of vulnerable persons, including legally invisible persons, the old, people with disabilities and the helpless, who have been represented by the their friends and who cannot conduct litigation activities themselves nor can they pay the lawyers’ fees, and Serbia does not have the Law on Free Legal Aid yet.
The opinion of the Constitutional Court was that “there is no constitutional ground for stipulating the limitations in regard to who may be the proxy of the party in the civil procedure”. Therefore, only the provision of the Law on Civil Procedure reading: “The proxy in the civil procedure may be any fully capable individual” would be in accordance with the Constitution. However, the legislator did not take into account the explanation of the decision of the Constitutional Court but in the Article 85, Paragraph 2 of the Law on Civil Procedure, contrary to the opinion of the Constitutional Court, again stipulated the limitations related to who may be the proxy of the individual in the civil procedure.
The question is why the legislator failed to consistently implement the opinion of the Constitutional Court but did it just partly, by prescribing that the proxy of an individual may be a person with full working capacity provided that he/she is a spouse or a close relative to the represented party, and thus got around the decision of the Constitutional Court and deprived some population groups from the right to access the court by imposing disproportionate and illegitimate limitations and threatening the constitutional principle of equality of legal protection before the courts and other state bodies.
Download: Initiative for the Assessment of the Article 85, Paragraph 2 of the Law on Civil Procedure
See the announcement: Constitutional Court Established that the Provisions of the Article 85, Paragraph 1 Stating “who must be the lawyer”, Article 85, Paragraph 2 and Articles 494 through 505 of the Civil Procedure Law are not in Accordance with the Constitution and Ratified International Treaties
